Preserve, Protect, and Defend

In his new book, Noah Feldman reveals Lincoln’s role in breaking — and remaking — the U.S. Constitution

Illustration Lincoln in the center surrounded by symbols of government with the words of the U.S. constitution "We the People" behind him

Credit: Anthony Russo

It’s unclear when exactly Abraham Lincoln became “the Great Emancipator,” or who gave him that title, which, like so many familiar, shorthand references, glosses over a host of complexities. In “The Broken Constitution: Lincoln, Slavery, and the Refounding of America,” Harvard Law School Professor Noah Feldman delves into these issues through a close examination of Lincoln’s evolving beliefs and political identity, creating a revealing portrait of a constitutional thinker deserving of another title, as Feldman sees it: “Rupturer in Chief.”

Noah Feldman’s new book offers a fresh perspective on the decisions Abraham Lincoln made regarding the U.S. Constitution, many of which Feldman describes as legally indefensible.

“Right now, we are gripped as a country by the question of whether the Constitution encodes racism in its DNA, or whether it can be read to contain the possibility of an aspirational equality,” says Feldman. “To answer that question, you have to look at the Civil War, because that’s the moment of ultimate rupture in our system. And you have to look at Lincoln, because he led that effort of rupture, even if he presented himself many times as preserving the constitutional framework.”

Feldman’s book reminds us of the compromise upon which the Constitution and the government were founded — how slavery was embedded in the constitutional system by counting three-fifths of a state’s enslaved population when determining government representation. It also included clauses addressing the return of fugitive enslaved people and the federal government’s right to quell related rebellions. As Feldman describes, Lincoln initially emulated Henry Clay, the “Great Compromiser,” who helped establish boundaries and a balance of slave-or-free status for territories acquired in the Mexican-American War through the Compromise of 1850. Early on, Lincoln was clear in his belief that slavery was a moral wrong, yet he subordinated that feeling to the greater good of binding slave and free states together through the compromise Constitution. But after months of war, Lincoln ultimately decided, as evidenced by the Emancipation Proclamation of 1862, that the compromise Constitution had been shattered and worked to replace it with a new charter founded on the idea of equality under the law.

While Lincoln’s biography and his administration of the Civil War have been endlessly analyzed, “The Broken Constitution” offers a fresh, rich perspective on the decisions he made regarding the Constitution, many of which Feldman describes as legally indefensible.

One of the most flagrant instances was Lincoln’s unilateral suspension of the writ of habeas corpus, an action he took without any constitutional authority and in direct opposition to an opinion by Supreme Court Chief Justice Roger Taney, who had also written the Dred Scott decision. “He used that suspension to effectively place a hold on the First Amendment and suppress the speech of political opponents, shut down scores of newspapers, and arrest thousands of people who were held as political prisoners for months, and sometimes years, all over the country,” says Feldman. “It’s by far the most extreme suspension of free expression in U.S. history.” The Constitution had already been broken in the act of secession; Lincoln saw no issue with breaking it in other ways if it furthered the goal of winning the war and preserving the Union.

book cover“In all of my books, I hope to expose the thought process by which important constitutional decisions are made by actual people, in real time,” Feldman says. “Law professors have a habit, which I don’t think serves us so well, of acting as though the Constitution is a document whose meaning and application are the products of abstract social forces. I try to show that social forces always act through human beings.”

Among the people Feldman highlights are relatively unknown figures who contributed to the public discourse.

“One of my favorite parts of writing this book was learning about brilliant people who aren’t household names but had an impact,” says Feldman. Most people know of Frederick Douglass, but other African American abolitionists spoke and wrote publicly about slavery as it related to the Constitution — and not all of them agreed with one another. William Howard Day argued that the Constitution was not inherently pro-slavery, and that one could and should choose to interpret it as protecting life, liberty, and justice for all people. In response, Hezekiah Ford Douglas wrote, “The gentleman may wrap the Stars & Stripes of his country around him forty times … and may seat himself under the shadow of the frowning monument of Bunker Hill, and if the slave holder, under the Constitution, and with the ‘Fugitive Bill,’ don’t find you, then there don’t exist a Constitution.”

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“I’m trying, bit by bit, to write the history of the U.S. Constitution through the ideas of the people who played central roles in shaping it,” says Feldman.

“I’m trying, bit by bit, to write the history of the U.S. Constitution through the ideas of the people who played central roles in shaping it,” says Feldman, whose 2017 book, “The Three Lives of James Madison: Genius, Partisan, President,” focuses on the Constitution’s framing and on debates about its meaning through the early 1800s. His earlier work “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices” follows four of the Court’s most influential justices from the 1930s to the 1960s, tracing the origins of leading theories of constitutional interpretation still evident today.

With his new book, Feldman hopes readers will experience the drama of “how Lincoln had to break the Constitution as it was then understood in order to refound America.”

“The Constitution before the Civil War was not a higher law or a moral blueprint, even to its supporters,” he says. “It was a pragmatic compromise that you either thought was moral or immoral, depending on your point of view. But the Constitution that emerged after Lincoln and after the 13th, 14th, and 15th Amendments is, at least in aspiration, a moral document proposing a form of equality we all believe ought to exist.”

Looking ahead, the period of Reconstruction to 1920 could be the final chapter of Feldman’s effort. “It’s an important and fascinating story of betrayal and possibility — betrayal of the Equal Protection Clause through the outrage of separate but equal,” he says, “but also simultaneously the birth of the idea that the Constitution protects individual liberties for everyone through the Due Process Clause.” In chronicling the Constitution’s evolution as a living document, Feldman holds a mirror to the story of a country and its people — one that continues to be debated, told, and retold.